De novo review by this court is automatic. ORS 9.536(2), (3).
Because the accused defaulted, we deem the allegations in the
complaint to be true. In re Parker, 330 Or 541, 543, 9 P3d 107
(2000). As discussed below, we conclude that those allegations
establish that the accused violated DR 1-102(A)(3), DR 3-101(B), DR
5-102(C), and DR 7-102(A)(5). We also conclude that the
appropriate sanction is a three-year suspension.

The Bar's complaint states the following facts. In December
1994, the accused and his wife filed a petition with the Yamhill
County Board of Equalization (Board), contesting an increase in the
assessed value of real estate that they owned. The accused also
submitted a real estate appraisal, prepared and signed by Wogan,
that supported the petition. In April 1995, the Appraiser
Certification and Licensure Board (ACLB) charged Wogan with
statutory or administrative violations relating to the appraisal.
The accused represented Wogan regarding the ACLB charges from 1995
to 1998.

On July 21, 1995, the accused deposed Riddell, the
administrator of ACLB, regarding the Wogan matter. The accused
told ACLB's counsel that the accused was a notary public. That
representation was false. The accused then administered an oath to
Riddell before the deposition. When he engaged in that conduct,
the accused knew that he was not a notary public and could not
administer an oath.

Counsel for ACLB notified the accused in July 1995 that he
intended to call the accused as a witness in the contested case
hearing concerning Wogan's appraisal. It was apparent that the
accused's testimony would or might be prejudicial to Wogan, but the
accused did not withdraw from the representation. At the contested
case hearing on November 27, 1995, ACLB's counsel called the
accused to testify. The accused testified to a limited extent but
refused to answer any material questions, claiming attorney-client
privilege.

Between 1995 and 1998, the accused engaged in the private
practice of law by representing Wogan. The Oregon State Bar
requires active members who engage in the private practice of law
to carry professional liability insurance through the Professional
Liability Fund (PLF). The accused did not carry PLF insurance from
1995 to 1998. In each of those years, the accused falsely
represented to the PLF that he was exempt from the PLF requirement
because he did not engage in the private practice of law in Oregon.
The accused knew that his representations to the PLF were false
when he made them.

On review, the accused first argues that the Bar failed to
prove that he violated any rules because the facts alleged in the
complaint are not supported by clear and convincing evidence. See
BR 5.2 (setting that standard of proof). As noted, however, the
accused defaulted. The trial panel, exercising the authority
granted in BR 5.8(a), deemed the allegations in the Bar's complaint
to be true. On de novo review, this court agrees with that
decision of the trial panel. Accordingly, this court also deems
the allegations in the complaint to be true. See BR 10.6
(authorizing court, on de novo review, to adopt, modify, or reject
trial panel decision in whole or in part). The accused forfeited
his opportunity to require the Bar to prove its allegations in a
hearing when he failed to file a timely answer to the Bar's
complaint.

Next, the accused argues that, even if the court deems the
allegations to be true, the alleged acts and omissions do not
constitute rule violations. On de novo review, we must determine
whether the alleged facts, which we deem to be true, establish the
violations stated in the complaint.

The first cause of complaint alleges that the accused violated
DR 1-102(A)(3) and DR 7-102(A)(5) by representing that he was a
notary public, when he knew that he was not. DR 1-102(A)(3)
provides that it is professional misconduct for a lawyer to
"[e]ngage in conduct involving dishonesty, fraud, deceit or
misrepresentation." DR 7-102(A)(5) prohibits lawyers from
"[k]nowingly mak[ing] a false statement of law or fact." The
accused contends that the allegations fail to demonstrate a
violation because the Bar did not allege that the accused's
misrepresentation was material. The accused asserts that the
misrepresentation was trivial.

"Misrepresentation" under DR 1-102(A)(3) includes both
affirmative misstatements and nondisclosure of material facts. In
re Brandt, 331 Or 113, 138, 10 P3d 906 (2000). To violate DR 1-102(A)(3) by misrepresentation, a lawyer must know that the
lawyer's statement is a misrepresentation and that it is material.
In re Claussen, 331 Or 252, 261, 14 P3d 586 (2000). A
misrepresentation is material if it involves information that would
or could significantly influence the hearer's decision-making
process. In re Gustafson, 327 Or 636, 649, 968 P2d 367 (1998).

The allegations in the Bar's complaint, and the reasonable
inferences drawn from those allegations, establish that the
accused's misrepresentation was material and that the accused knew
that that misrepresentation was material. The complaint alleges
that the accused lied about his notary status, administered an oath
to the deponent, and then took her deposition. If Riddell and
ACLB's attorney had known that the accused was not a notary, then
they would have known that the purported deposition was legally
defective. See ORCP 38 A(1) (oath or affirmation administered to
deponent by officer authorized to administer oaths by Oregon law,
or by person specially appointed by court, shall precede
depositions in Oregon). That information could or would have
influenced their decision to proceed with the deposition.

We turn to the alleged violation of DR 7-102(A)(5), which
prohibits a lawyer from knowingly making a false statement of law
or fact "[i]n the lawyer's representation of a client or in
representing the lawyer's own interests." The accused again
asserts that the Bar's complaint fails to allege that he
misrepresented a material fact. That argument is not well founded.
The complaint alleges that the accused misrepresented his notary
status to ACLB's attorney during the accused's representation of
Wogan and "knew the representation to be false when he made it."
Those allegations establish the materiality of the accused's
misrepresentation. Therefore, we conclude that the accused
violated DR 7-102(A)(5).

The second cause of complaint also alleged that the accused
violated DR 5-102(C) by failing to withdraw from representing Wogan
in the ACLB proceeding. DR 5-102(C) provides:

"If, after undertaking employment in contemplated
or pending litigation, a lawyer learns or it is obvious
that the lawyer or a member of the lawyer's firm may be
called as a witness other than on behalf of the lawyer's
client, the lawyer may continue the representation until
it is apparent that the lawyer's or firm member's
testimony is or may be prejudicial to the lawyer's
client."

The allegations in the complaint establish a violation of DR 5-102(C).

In the third cause of complaint, the Bar alleged that
the accused violated DR 3-101(B) by practicing law "in a
jurisdiction where to do so would be in violation of regulations of
the profession in that jurisdiction." Specifically, the complaint
alleges that the accused violated ORS 9.080(2)(a) and sections 15.1
and 15.2 of the Bar's bylaws by engaging in the private practice of
law without professional liability insurance from the PLF. ORS
9.080(2)(a) authorizes the Bar to require its active members
"engaged in the private practice of law whose principal offices are
in Oregon" to carry professional liability insurance from the PLF
and to assess from those lawyers contributions to the professional
liability fund. Oregon State Bar Bylaw 15.1 generally discusses
the formation of the PLF. Bylaw 15.2 provides that the PLF shall
possess the powers and authorities delegated to it by the Bar's
Board of Governors, including the authority to carry out the
provisions of ORS 9.080.

The "regulations of the profession" in Oregon, which ORS
9.080 authorizes and Bylaws 15.1 and 15.2 implement, require every
lawyer engaged in the private practice of law in Oregon to carry
professional liability insurance. Practicing law without
professional liability coverage violates regulations of the
profession encompassed by DR 3-101(B). We conclude that the
complaint establishes that the accused violated DR 3-101(B).

The fourth cause of complaint alleged that the accused
violated DR 1-102(A)(3) from 1995 to 1998 by representing to the
PLF that he was entitled to the exemption from paying for PLF
coverage because he did not engage in the private practice of law,
when, in fact, he did. The trial panel declined to find that the
accused violated DR 1-102(A)(3) in 1995, because, according to the
complaint, the accused's misrepresentation began in May 1995, when
he began to represent Wogan. According to a document that the Bar
introduced at the sanctions hearing, the accused submitted his
exemption request for 1995 before he began to represent Wogan.

We reject that reasoning. Due to the accused's default,
we accept as true the allegation in the complaint that the
accused's misrepresentations to the PLF in each of the years 1995,
1996, 1997, and 1998 "were false when he made them." That fact
establishes the accused's violation of DR 1-102(A)(3) during each
year, including 1995. We may (and do) consider the document on
which the trial panel relied in determining the appropriate
sanction, but not to relieve the accused from the disciplinary rule
violation that the alleged facts establish. SeeIn re Staar, 324
Or 283, 288, 924 P2d 308 (1996) (following that analysis). The
accused's misrepresentations to the PLF during the years 1995
through 1998 violated DR 1-102(A)(3).

The accused also makes various "counterclaims" against
the Bar and its employees, alleging disciplinary violations. The
Bar Rules establish procedures for submitting and investigating
disciplinary complaints. See BR 2.5 (describing complaint
procedures). The accused has invoked those procedures to lodge
complaints against various individuals associated with this
proceeding. The Bar's rules do not permit the accused to pursue
his complaints against other lawyers as "counterclaims" in the
Bar's proceeding against him. We decline to consider the accused's
"counterclaims." The accused's additional assignments of error do
not merit discussion.

We turn to a consideration of the appropriate sanction.
To determine the sanction in a disciplinary proceeding, this court
looks to the American Bar Association's Standards for Imposing
Lawyer Sanctions (1991) (amended 1992) (ABA Standards) and Oregon
case law. In re Parker, 330 Or at 545. We first ascertain the
appropriate sanction by considering: (1) the duty violated; (2)
the accused's mental state; and (3) the actual or potential injury
caused by the misconduct. ABA Standard 3.0; In re Meyer(I), 328 Or
211, 216, 970 P2d 652 (1999). The court next decides whether any
aggravating or mitigating circumstances are present and then
adjusts the sanction accordingly. ABA Standard 3.0; In re Meyer
(I), 328 Or at 216-17. Finally, we consider the sanction in light
of Oregon case law. In re Devers, 328 Or 230, 241, 974 P2d 191
(1999).

The accused violated his duty to his client, Wogan, by
continuing to represent her after he knew that he would be called
as a witness in her matter. ABA Standard 4.0. He violated his
duty to the public by engaging in conduct that involved dishonesty,
fraud, deceit, or misrepresentation, and by practicing law without
the proper liability coverage. ABA Standard 5.0. The accused also
violated his duty to the profession by making false representations
to opposing counsel and the PLF. ABA Standard 7.0.

The Bar argues that, when the accused committed each
violation in this matter, he acted intentionally. Under the ABA
Standards, a lawyer acts intentionally when the lawyer proceeds
with "the conscious objective or purpose to accomplish a particular
result." ABA Standards at 7. The trial panel concluded that the
accused acted intentionally when he misrepresented his status as a
notary public, practiced law without PLF coverage, and made false
certifications about his eligibility for an exemption to the PLF.
The trial panel determined that the accused acted with knowledge
when he refused to withdraw from representing Wogan. See ABA
Standards at 7 (defining "knowledge" as "conscious awareness of the
nature or attendant circumstances of the conduct but without the
conscious objective or purpose to accomplish a particular result").
Two premises underlie the Bar's argument regarding the
accused's mental state. The first is that the facts alleged in the
Bar's complaint, which the court deems to be true due to the
accused's default, describe "the acts or omissions of the accused,"
BR 4.1(c), that demonstrate the asserted misconduct, but those
allegations do not establish the accused's state of mind for
purposes of determining the appropriate sanction. The second is
that, in a post-default sanctions proceeding under BR 5.8(a), the
Bar may prove the actual state of mind that accompanied the
accused's misconduct, such as "intent," even if the complaint
alleged either a less culpable state of mind, such as "knowledge,"
or no specific mental element at all.

To date, this court has not discussed directly the
correctness of those premises. SeeIn re Koliha, 330 Or 402, 408-09, 9 P3d 102 (2000) (concluding, where accused lawyer had
defaulted and Bar's complaint specified no particular mental state,
that accused lawyer had committed some violations "intentionally"
and another "knowingly"); In re Crist, 327 Or 609, 615-16, 965 P2d
1023 (1998) (concluding, where accused lawyer had defaulted and
Bar's complaint specified no particular mental state, that accused
lawyer had committed some violations "knowingly" and other
"intentionally"). In Staar, the Bar charged a lawyer with
violating DR 1-102(A)(2), (3), and (4), and DR 7-102(A)(5) for
making false statements in a petition for a restraining order. 324
Or at 285. The complaint alleged that the lawyer "knew" that her
statements were false when she made them and that she had
"knowingly [made] a false statement of fact" in violation of each
of the disciplinary rules cited above. After the accused
defaulted, this court deemed the alleged facts to be true. In
determining the appropriate sanction, this court found, in
accordance with the facts deemed to be true, that the accused
lawyer made false statements of fact "knowing them to be false."
Id. at 291 (citing Standards at 7 (defining "knowledge")). 324 Or
at 291. The court's opinion in Staar does not address whether the
Bar was entitled to prove, in a sanctions proceeding, that the
accused acted with a more serious, intentional state of mind. We
address that question now, because of its importance to the Bar and
to lawyers facing professional discipline.

The disciplinary rules at issue in this case do not
uniformly identify the mental state that must accompany proof of a
violation. For example, DR 1-102(A)(3) sets out no express mental
state element in prohibiting "conduct involving dishonesty, fraud,
deceit or misrepresentation." This court, however, has decided in
case law that proof of a failure to disclose material information
constitutes misrepresentation if "the lawyer had the undisclosed
fact in mind and knowingly failed to disclose it." In Re Hiller,
298 Or 526, 532, 694 P2d 540 (1985) (emphasis added). Hiller also
held that "[a] misrepresentation becomes fraud or deceit when it is
intended to be acted upon without being discovered." Id. at 533.
In that case, the Bar proved that the accused lawyers made
misrepresentations with knowledge of the true facts, but failed to
prove that they acted intentionally. Accordingly, the accused
lawyers had committed misrepresentation, but not fraud or deceit.
Id. at 533-34.

The discussion of mental states in Hiller identified
proof requirements under DR 1-102(A)(3), but not pleading
requirements. BR 4.1(c) describes the Bar's obligation in pleading
allegations of professional misconduct in a formal disciplinary
complaint:

"A formal complaint shall be signed by the
Executive Director, or his or her designee, and shall
set forth succinctly the acts or omissions of the
accused, including the specific statutes or disciplinary
rules violated, so as to enable the accused to know the
nature of the charge or charges against the accused.
When more than one act or transaction is relied upon,
the allegations shall be separately stated and numbered.
The formal complaint need not be verified."

BR 4.1(c) requires that the Bar allege the "acts or omissions" of
the accused lawyer that constitute violations of the pertinent
statutes and disciplinary rules, and the specific statutes and
disciplinary rules on which the Bar bases its complaint. The
express purpose for requiring the Bar to allege particular facts is
to notify the accused lawyer of "the nature of the charge or
charges against the accused."

Under BR 5.8(a), if an accused lawyer defaults and the
trial panel deems the facts alleged in the Bar's complaint to be
true, then the Bar must rely on those facts to establish the
accused lawyer's responsibility for the violation of the statutes
or disciplinary rules set out in the complaint. The Bar may rely
on those facts in arguing for a particular sanction. However, BR
5.8(a) also grants discretion to the trial panel, in the event of a
default, to consider "evidence or legal authority limited to the
issue of sanction." That provision entitles the Bar, at the
discretion of the trial panel, to present further evidence
regarding the appropriate sanction. Consequently, BR 5.8(a)
contemplates that the Bar may present additional evidence regarding
the accused's mental state that might differ from that which the
facts alleged in the complaint state or imply. Although Staar
holds that the trial panel may not rely on the Bar's evidence in a
sanctions hearing under BR 5.8(a) to relieve a lawyer of
responsibility for a charge to which the lawyer has defaulted, 324
Or at 288, BR 5.8(a) allows the trial panel to determine the
appropriate sanction by considering evidence admitted in a
sanctions hearing that the accused acted with a state of mind that
is more serious than that indicated by the allegations in the
complaint.

The foregoing leads us to agree with the premises,
described above, that underlie the Bar's arguments regarding the
accused's mental state. We also agree with the Bar, on de novo
review, that the accused committed each of the alleged violations
intentionally.

We next consider the nature of the injury caused by the
accused's misconduct. "Injury" includes actual or potential harm
to a client, the public, the legal system, or the legal profession.
ABA Standards at 6-7. The Bar did not present evidence of actual
injury to Wogan, but the potential for injury under the
lawyer/witness rule, DR 5-102(c), is substantial. By practicing
law without PLF coverage, the accused caused substantial potential
harm to the public and other members of the profession, who
absorbed the potential costs of the risks that the accused failed
to insure. The accused also caused actual harm to Riddell and
ACLB's counsel, by inducing them to participate in a legally
defective deposition.

The ABA Standards advise that disbarment generally is
appropriate when a lawyer engages in noncriminal "intentional
conduct involving dishonesty, fraud, deceit, or misrepresentation
that seriously adversely reflects on the lawyer's fitness to
practice." ABA Standard 5.11(b). Reprimand generally is
appropriate when a lawyer knowingly engages in noncriminal "conduct
that involves dishonesty, fraud, deceit, or misrepresentation and
that adversely reflects on the lawyer's fitness to practice law."
ABA Standard 5.13. Suspension generally is appropriate "when a
lawyer knowingly engages in conduct that is a violation of a duty
owned to the profession and causes injury or potential injury to a
client, the public, or the legal system." ABA Standard 7.2. Given
the duties violated, the accused's mental state, and the level of
injury, we conclude preliminarily that either disbarment or a
suspension is warranted.

Several aggravating factors apply. There are multiple
offenses, revealing a pattern of dishonesty and misconduct by the
accused. ABA Standard 9.22(c), (d). The accused engaged in a bad-faith obstruction of the disciplinary proceeding. ABA Standard
9.22(e). The accused has refused to acknowledge the wrongful
nature of his conduct. ABA Standard 9.22(g). He also has
substantial experience in the practice of law, having been admitted
in 1978. ABA Standard 9.22(i).

In mitigation, the accused has no prior disciplinary
record. ABA Standard 9.32(a). The aggravating factors greatly
outweigh that mitigating factor.

This court has imposed serious sanctions for violations
of DR 3-101(C) by lawyers who practice law while suspended. See,
e.g., Koliha, 330 Or at 411 (imposing one-year suspension for
practicing law while suspended and making misrepresentation);
Devers, 328 Or at 244-45 (disbarring lawyer who practiced law while
suspended and made misrepresentation in reinstatement application);
In re Jones, 312 Or 611, 619-20, 825 P2d 1365 (1992) (disbarring
lawyer who intentionally practiced law for three months while
suspended and knowingly failed to cooperate with the Bar's
investigation, among other violations).

Our case law, reviewed above, demonstrates that the
court has imposed sanctions ranging from disbarment to a lengthy
suspension for analogous misconduct in the practice of law. The
conduct of the accused in this case is more serious than that shown
in Gustafson, Wyllie, Morris, Porter, Dinerman, Boardman, and
Koliha, because of the nature and number of the accused's
violations. The conduct of the accused is less serious than that
shown in Morin, Hawkins, Devers and Jones, each of which resulted
in disbarment for multiple intentional violations of disciplinary
rules or criminal statutes that lead to significant actual injury.

We are persuaded in this case that a lengthy suspension,
rather than disbarment, is the appropriate sanction. We rely for
that conclusion on the absence of a prior disciplinary record after
the accused's long career in law practice. We conclude that a
suspension of three years is appropriate.

The accused is suspended from the practice of law for
three years, commencing 60 days from the date of filing of this
decision.

"If an accused lawyer fails to resign or file an
answer to a formal complaint within the time allowed by
these rules, * * * the trial panel may enter an order in
the record finding the accused in default under this
rule. The trial panel may thereafter deem the
allegations in the formal complaint to be true. The
trial panel shall thereafter proceed to render its
written opinion based on the formal complaint, or at the
discretion of the trial panel, after considering
evidence or legal authority limited to the issue of
sanction. * * * Following entry of an order of default,
the accused shall not be entitled to further notice in
the disciplinary proceeding under consideration, except
as may be required by these rules or by statute. The
trial panel shall not, absent good cause, continue or
delay proceedings due to an accused's failure to answer
or appear."

3. For example, the accused asserts that, if the court
deems the allegations in the complaint to be true, then his
representation of Wogan was a knowingly wrongful act, and such acts
are not covered by the plan. See PLF Claims Made Plan sec I(3)(b)
(excluding coverage for wrongful conduct).

The Bar argues that the accused cannot raise his
arguments regarding the application of DR 3-101(B) now, because he
did not raise them in a timely manner before the trial panel. The
Bar is correct. Therefore, we confine our review solely to the
question whether the allegations state a cause of complaint under
DR 3-101(B).

4. As noted, DR 1-102(A)(3) does not set out a mental state
requirement. DR 3-101(B), which prohibits a lawyer from
"practic[ing] law in a jurisdiction where to do so would be in
violation of regulations of the profession in that jurisdiction[,]"
does not state a required mental element unless, hypothetically,
the regulations in question contain mental element requirements.
DR 5-102(C), which prohibits a lawyer from acting as a witness in
certain circumstances, refers to facts that a lawyer "learns" or
that must be "obvious," and that actual or potential prejudice to
the client must be "apparent," but the rule otherwise does not
state a required mental element. Finally, DR 7-102(A)(5) prohibits
a lawyer from "[k]nowingly mak[ing] a false statement of law or
fact." (Emphasis added.) The term "knowingly" indicates that the
mental state of knowledge is the required mental element in a
pleading that alleges a violation of that rule.